The Supreme Court Is Unlikely to Reinstate Prop. 8

Harvard Law Professor Michael Klarman weighs in on the Supreme Court's oral arguments surrounding gay marriage.



The Supreme Court begins its second day of oral arguments surrounding the question of gay marriage Wednesday as it considers whether to strike down the federal Defense of Marriage Act (DOMA), which denies federal benefits to wedded same-sex couples. It follows Tuesday’s argument on whether to let stand a California ban on same-sex marriage. The court’s decisions aren’t expected until June, but they have already become the subject of intense speculation. Harvard Law professor Michael Klarman, an American legal historian and constitutional law scholar, offers his predictions for the outcome of both cases.

1. It’s highly unlikely that the Supreme Court will reverse the 9th Circuit’s decision to strike down Proposition 8.

The Supreme Court has a range of possible solutions available to them, from a very broad ruling that finds a constitutional right to marry for same-sex couples (which would legalize gay marriage in every state) to a ruling that would reverse the 9th Circuit’s decision to strike down Proposition 8 (which would leave in place California’s ban on same-sex marriage). Of all the possibilities, Klarman says a decision to reverse the 9th Circuit’s ruling is the least likely.

“I can’t believe that five justices (the number required for a majority) would want to sign their name to an opinion that will very quickly look very bad to a very large number of people. A decision rejecting gay marriage entirely will start to look like the decisions made on Plessy v. Ferguson or Korematsu v. the United States” says Klarman, referring to two earlier landmark Supreme Court cases that have been harshly judged by history for upholding racial discrimination.

“Justice Kennedy is probably the swing vote. He cares about what his legacy would be and what he’d want it to be. He sees the handwriting on the wall, and that reform is sweeping the country. And he wouldn’t want to be participating in forum in opposition to it,” says Klarman.

“To many that decision [to reject gay marriage] would look bad now, but in 10 years it’s going to look even worse.” Marriage equality has been rapidly gaining support in the last two decades. Forty-nine percent of Americans favor allowing gays and lesbians to marry legally, according to a survey by the Pew Research Center (as many as 58 percent support it, according to a Washington Post poll) which marks a gain of more than fifteen percentage points since the question was asked in 2003.

“Even if it’s not an argument for advancing the ball for imposing gay marriage on the country before it’s voluntarily adopted, I think it’s enough that a majority of justices won’t want to commit themselves to such a regressive decision.”

2. But that doesn’t mean the Supreme Court is going to find a constitutional right for gay marriage.

“No jurisdiction in the world has more than 12 years experience with gay marriage,” says Klarman, who notes that the Netherlands—the world’s first country to legalize same-sex marriage—only did so in 2001, and that Massachusetts—the first state to legalize it—only did so in 2003.

“For someone conservatives, like Justice Alito, that’s an argument for not intervening,” explains Klarman. “On the basis of limited experience, the court shouldn’t impose it on the rest of the country.”

Klarman says other justices may oppose national legalization in fear of possible repercussions. Some may feel that “trying to advance change too quickly could actually generate more resistance and make it harder in the long term to reach a settlement that’s acceptable to a broader range of people,” Klarman explains, citing the groundswell of support for capital punishment that was produced when the court considered eliminating the death penalty in Furman v. Georgia in 1972.

Other justices may not want such a dramatic change to be legislated nationally, and may reject a broad ruling for that reason. Some may feel that “it’s not good for the country when the court decides something that people could have arrived at on their own accord.”

3. It’s a lot more likely that the justices will strike down DOMA than Proposition 8.

It will likely be easier for the justices to come up with the five or six person majority necessary to strike down DOMA, as the decision appeals to justices regardless of whether or not they are sympathetic to the right of gays and lesbians to marry. “Some conservative justices might believe that even if a state should be free for itself to decide same sex marriage, there’s no particular reason why the federal government ought to have an opinion on marriage,” explains Klarman. “Conservative justices could vote down DOMA without taking a position in favor of same-sex marriage, and by taking a federalist position instead,” explains Klarman. “There would be no obligation on any state to do something they haven’t already chosen to do.”

Although overturning DOMA may not produce the same far-reaching effect, it would still produce gains for same-sex couples. “In effect, the federal government would have to start providing benefits to same-sex couples legally married in places like Massachusetts.”

4. But they could decide to dismiss both cases without issuing a ruling in either case.

“There’s a respectable argument that the party that brought the case to court is not the proper party to do so,” says Klarman. “In the Proposition 8 case, a same-sex couple is challenging the ban, and you would expect the state of California to defend it.” But the governor and the attorney general both think the ban is unconstitutional, and therefore passed the responsibility to defend the ban to its proponents who put it on the ballot in the first place. “It’s not a traditional party,” says Klarman, and the court may decide “private citizens don’t have the requisite concrete interest to argue that a state law should be enforced, and that they don’t have standing.”

The justices may find that DOMA also lacks standing. Article Three of the Constitution requires that a controversy must be between the two parties in order for their case to be brought before the Supreme Court. But both the U.S. Government and the plaintiff agree that DOMA is unconstitutional. “The question is then whether there is enough of a difference between the two parties,” Klarman explains. “It could have standing because even if the Obama administration agrees [with the plaintiff], they’re still enforcing it, and there’s something very concrete at stake.” A ruling to strike down DOMA would result in the plaintiff being refunded roughly 300,000 dollars in federal estate taxes.

“There’s just not that much prior case law to resolve the issue,” says Klarman. “There’s enough open endedness on that legal issue that they have discretion to go either way.”

5. In the end, there’s no great way to predict how the justices will decide.

“It’s not any kind of science,” says Klarman. “We can make guesses based on what they’ve done in the past, but nobody knows for sure.”

Regardless of what the court decides in June, Klarman says the movement for gay marriage is going to move forward. “Ultimately it’s not going to affect the outcome whether the Supreme Court decides to accept gay marriage tomorrow or decides not to except it tomorrow.” The movement for marriage equality is “going to continue to play out that way, with opinion in one or two or three states each year having come far enough along where the legislature decides to accept same-sex marriage or people decide to put it on the ballot. That may take a decade or two before every state is brought on board,” Klarman explains. “But it’s pretty obvious what the outcome will be.”